Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233

Land and Environment Court New South Wales

Medium Neutral Citation: Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233 Hearing dates: 19 and 22-24 February 2021 Date of orders: 11 May 2021 Decision date: 11 May 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The Orders of the Court are: (1) The applicant is granted leave to amend the application to rely on the amended proposal in Exhibit E. (2) The applicant is to pay the respondent's costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3) The appeal is dismissed. (4) Development Application No. 36/20 for alterations and additions to an existing dwelling and construction of a four storey residential flat building over basement parking at 2 Nulla Nulla Street, Turramurra, is refused. (5) The Exhibits, other than Exhibits 1 and 2, are returned. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling and construction of a residential flat building – prohibited development in the zone – local heritage item – application relies on the heritage incentive clause for permissibility – the heritage item is the dwelling – the land referred to in the heritage incentive clause is the cadastral lot identified by Schedule 5 to Ku-ring-gai Local Environmental Plan (Local Centres) 2012 – the proposed development would adversely affect the heritage significance of the heritage item – the proposed development would have a significant adverse effect on the amenity of the surrounding area – the development standards in the Ku-ring-gai Local Environmental Plan 2012 apply to the proposed development – exceedance of the height of buildings development standard – the environmental planning grounds identified by the applicant in the written request are not sufficient to justify the exceedance of the height of buildings development standard Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.46, 8.7, 8.15 Heritage Act 1977 ss 4, 57 Interpretation Act 1987 ss 6, 9, 11 Ku-ring-gai Local Environmental Plan (Local Centres) 2012 cll 1.7, 4.3, 4.6, 5.10, 6.2 Land and Environment Court Act 1979 ss 34, 39 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development cll 4, 5, 28 Cases Cited: Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Fox v North Sydney Council [2020] NSWLEC 1056 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Leichhardt Council v Telstra Corporation (2005) 139 LGERA 62; [2005] NSWLEC 152 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Apartment Design Guide Land and Environment Court of New South Wales, Practice Note Class 1 Development Appeals, (2018) The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013 Category: Principal judgment Parties: Howe Architects Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: M Wright SC (Applicant) C Novak (Respondent)